Citation Nr: 9929506
Decision Date: 10/14/99 Archive Date: 10/21/99
DOCKET NO. 97-33 971A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUES
1. Entitlement to an increased evaluation for chronic low
back pain, currently rated as 40 percent disabling.
2. Entitlement to a total disability evaluation for
individual unemployability due to service-connected
disabilities.
REPRESENTATION
Appellant represented by: Alabama Department of Veterans
Affairs
WITNESSES AT HEARING ON APPEAL
Appellant, and spouse
ATTORNEY FOR THE BOARD
S. L. Smith, Counsel
INTRODUCTION
The appellant as a member of the Army National Guard served
on active duty from February 1977 to May 1977; and had
periods of inactive duty and active duty for training (ADFT)
service until his medical discharge in 1986.
This matter came before the Board of Veterans' Appeals (the
Board) on appeal from rating decisions of the Montgomery
Alabama Regional Office (RO) of the Department of Veterans
Affairs (VA), that increased the rating for the veteran's
service-connected low back disorder from 10 to 40 percent but
denied a higher rating and denied a total disability
evaluation due to individual unemployability (TDIU) based on
the veteran's service-connected disabilities.
FINDINGS OF FACT
1. Clinical findings associated with the veteran's service-
connected lumbar spine disorder include slow guarded gait
with use of cane, and guarded trunk movements; obvious pain
with movement; and limited range of motion of 19° flexion, 6°
extension, 28° left lateral bending and 11° lateral bending
to the right. Clinical neurological examination was
unremarkable and normal with no clinical evidence of serious
nerve root injury.
2. The veteran is service-connected for chronic low back
pain, rated as 40 percent disabling, and adjustment disorder
with mixed emotional features, secondary to the back
disorder, rated as 10 percent disabling. He has a combined
disability evaluation of 50 percent.
2. The veteran does not have a combined service-connected
disability rating of at least 70 percent, with at least one
service-connected disability rated at least 40 percent or
more; or at least a 60 percent rating for a single service-
connected disability resulting from disability of common
etiology or a single accident.
CONCLUSIONS OF LAW
1. An evaluation in excess of 40 percent is not warranted
for the veteran's service-connected lumbar spine disability.
38 U.S.C.A. §§ 1154, 7104 (West 1991 & Supp. 1998); 38 C.F.R.
§ 4.71a, Diagnostic Codes 5292-5295 (1999).
2. The appellant lacks entitlement under the law to a total
disability rating based upon individual unemployability due
to service-connected disability. 38 U.S.C.A. § 5107 (West
1991 & Supp. 1998); 38 C.F.R. § 4.16 (1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Initially, the Board finds that the veteran's claims for an
increased evaluation and TRIU are well grounded within the
meaning of 38 U.S.C.A. 5107(a) (West 1991 & Supp. 1998) that
is, the claims are plausible. The Board notes that claims
for increased evaluations are generally considered to be well
grounded, where the disorder was previously service-connected
and rated and the claimant subsequently asserts that a higher
rating is justified due to an increase in severity since the
original rating. Proscelle v. Derwinski, 2 Vet.App. 629, 632
(1992).
The veteran has not alleged, and the record does not
indicate, the need to obtain any pertinent records which have
not already been associated with the claims folder. It is
accordingly found that all relevant facts have been properly
developed, and that the duty to assist him, mandated by 38
U.S.C.A. 5107(a) (West 1991 & Supp. 1998), has been
satisfied.
FACTUAL SUMMARY
Available service medial records reflect that the appellant
initially sustained a low back injury in January 1984 at his
civilian job. However, during a subsequent ADFT period in
September 1984 he suffered additional injury to his coccyx
area. He was treated conservatively and with steroid
injections without relief from pain. He underwent a
coccygectomy in December 1984 but continued to complain of
pain. In 1985 he had a series of epidural blocks without
success. A Service Medical Board Report, dated November
1985, noted that the veteran, due to back pain, walked with
considerable paravertebral muscle spasm and was limited in
his activities. The diagnoses were: chronic low back pain;
coccydynia; and post coccygectomy. He was found to be unfit
for duty and referred to a Physical Evaluation Board (PEB).
The PEB recommended discharge; and the veteran was
subsequently discharged from the U. S. Army National Guard in
1986.
Records from the Social Security Administration (SSA)
indicate that the veteran was determined, by Administrative
Law Judge decision dated March 1986, to be totally disabled
and entitled to SSA disability benefits since the alleged
onset date of September 1984.
Evidence of record also shows that the veteran had obtained
his associate college degree in engineering design
technology. He had been employed as a machinist since 1976.
He worked for the same employer in that capacity from 1978 to
September 1984. He had not been employed since that time.
The veteran submitted a claim for service connection for
residuals of a back injury in October 1986. By rating
decision dated October 1986, the veteran was awarded service
connection for chronic lower back pain, and assigned a 10
percent disability rating under the criteria of Diagnostic
Code 5295 for chronic lumbosacral strain.
Subsequently dated private and VA medical records show that
the veteran continued to seek treatment for chronic low back
pain radiating to the left leg. He also began receiving
treatment for psychological problems associated with his
chronic pain and functional limitations.
VA examination report dated December 1990 noted subjective
complaint of increasing chronic low back pain. Current
medications included Tylox, Imipramine, and Inderal. He was
seen regularly at the VA Pain Clinic and had been on various
medications without relief. He had normal lumbosacral spine
x-rays in May 1990. Objectively, he was noted to walk with a
limp to the left and slightly crouched. There was moderate
tenderness in the lumbar area caused from bilateral muscle
spasms. Range of motion was limited by pain to about 70
degrees flexion. Straight leg raising test was negative.
The diagnostic impression was lumbosacral back sprain with
chronic low back pain.
On VA spine examination of May 1996, the veteran complained
of "pain all the time." Historically, he had a TENS unit
implanted in 1987, and the last battery replacement in 1993.
He also took Lorcet plus and Ultram for pain. Objective
findings included a 10 centimeter linear scar on the back and
a surgical scar on the abdomen containing the TENS unit.
Range of motion was recorded as 19° flexion; 6° extension;
28° left lateral flexion; and 11° right lateral flexion.
Clinically, no neurological involvement was identified. The
examiner also commented that the veteran walked with a cane
and every step was guarded and seemed painful and that he
also moved in and out of a chair very cautiously. The final
diagnosis was post traumatic low back pain, severe, of
questionable etiology. VA radiographic report, also dated
May 1996, noted that x-rays of the lumbosacral spine revealed
no abnormality.
Thereafter, the RO by rating decision dated January 1997,
increased the veteran's disability evaluation for his
service-connected low back disorder from 10 to 40 percent
disabling under the criteria of Diagnostic Code 5295.
However, a TDIU evaluation was denied. The veteran appealed.
VA psychiatric examination report dated June 1998, indicated
that the veteran had been seen for "nerves" since
approximately 1987. He attributed his problems to his
chronic back pain and inability to work. At the present time
his daily routine consisted primarily of sitting at home and
watching television. He could not walk very far due to back
pain and was afraid to lift anything because this often
caused additional back pain. The examiner found no evidence
of cognitive dysfunction; memory and judgment showed no
impairment. Affect was appropriate and mood was basically
euphoric. No psychotic ideation or behavior was noted. The
examiner noted that although there was no discernible
impairment in the veteran's overall operational judgment, he
(the veteran) did look at the world in a very negative way.
The diagnosis on Axis I was: "Adjustment disorder with
mixed emotional features (depression and anxiety)." The
examiner further commented that the veteran revealed a
pessimistic outlook and some mild to moderate depression
secondary to his reported physical problems. However, the
depression, by itself, was not disabling.
In a subsequent rating decision dated September 1998, the RO
awarded service connection for adjustment disorder as
secondary to the veteran's service-connected low back
disorder and assigned a 10 percent rating for the psychiatric
disorder.
The veteran and his spouse testified at a personal hearing
conducted by video conferencing before the undersigned Board
member in July 1999. They both related that the veteran had
been unemployed since September 1984 due to his back
condition. He continued to suffer with severe low back pain
as well as left leg symptomatology that caused him to fall
and necessitated the use of a cane. He had fallen three
times in the yard during the preceding two months. He had
difficulty sleeping, could not sit or stand for a prolonged
period or walk for any distance. It had greatly impacted his
physical relationship with his wife. He had become
increasingly ill-natured and isolated in his house. He had a
quick temper and suffered periods of depression approximately
3 to 4 times a week. He was currently taking Valium,
Percocet, Desipramine, and Elavil.
LEGAL ANALYSIS
Increased evaluation for lumbosacral spine disability
Disability evaluations are determined by comparing the
veteran's present symptomatology with the criteria set forth
in the Schedule for Rating Disabilities (Schedule), 38
U.S.C.A. 1155 (West 1991 & Supp. 1998); 38 C.F.R. Part 4
(1999). In making a determination in this case, the Board
has carefully reviewed the pertinent medical evidence,
including the veteran's entire medical history in accordance
with 38 C.F.R. 4.1 (1999) and Peyton v. Derwinski, 1 Vet.App.
282 (1991).
In evaluating service-connected disabilities, the Board looks
to functional impairment. The Board attempts to identify the
extent to which a service-connected disability adversely
affects the ability of the body to function under the
ordinary conditions of daily life, including employment. 38
C.F.R. 4.2, 4.10 (1999). Where there is a question as to
which of two evaluations shall be applied, the higher
evaluation will be assigned if the disability picture more
nearly approximates the criteria required for that rating;
otherwise, the lower rating will be assigned. 38 C.F.R. 4.7
(1999). All evidence must be evaluated in arriving at a
decision regarding an increased rating. 38 C.F.R. 4.2, 4.6
(1999).
Disability of the musculoskeletal system is primarily the
inability, due to damage or infection in parts of the system,
to perform the normal working movements of the body with
normal excursion, strength, speed, coordination, and
endurance. It is essential that the examination on which
ratings are based adequately portray the anatomical damage,
and the functional loss with respect to all these elements.
The functional loss may be due to absence of part, or all, of
the necessary bones, joints, and muscles, or associated
structures, or to deformity or other pathology, or it may be
due to pain, supported by adequate pathology and evidence by
the visible behavior of the claimant undertaking the motion.
Weakness is as important as limitation of motion, and part
which becomes painful on use must be regarded as seriously
disabled. 38 C.F.R. 4.40 (1999). See also DeLuca v. Brown,
8 Vet.App. 202 (1995). In making its determination in this
case, the Board has carefully considered the claim in light
of the provisions of 38 C.F.R. 4.40 (1999) and DeLuca.
The veteran's service-connected low back disability,
identified as "chronic low back pain", is currently
evaluated as 40 percent disabling, and the veteran has
claimed that a higher evaluation is warranted. The criteria
for evaluation of disabilities of the spine are set forth in
Diagnostic Codes 5285-5295. 38 C.F.R. § 4.71a (1999).
Diagnostic Code 5292 provides disability evaluations based on
objective evidence of limitation of motion of the lumbar
spine which is slight (10 percent disabling), moderate (20
percent disabling), and severe (40 percent disabling).
Diagnostic Code 5295 provides the criteria for evaluation of
lumbosacral strain, and provides an evaluation of 10 percent
based on objective evidence of characteristic pain on motion.
Where the objective evidence shows muscle spasm on extreme
forward bending and loss of lateral spine motion, unilateral,
in a standing position, a 20 percent evaluation is
appropriate. An evaluation of 40 percent, the highest
available rating under this diagnostic code, is provided
where the lumbosacral strain is shown to be severe, with
listing of whole spine to opposite side, positive
Goldthwait's sign, marked limitation of forward bending in
standing position, loss of lateral motion with osteo-
arthritic changes, or narrowing or irregularity of joint
space, or some of the above with abnormal mobility on forced
motion.
Diagnostic Code 5293 provides disability evaluations for
intervertebral disc syndrome, based on objective evidence of
symptomatology as follows: post-operative, cured
(noncompensable); mild (10 percent disabling); moderate, with
recurring attacks (20 percent disabling); severe, recurring
attacks with intermittent relief (40 percent disabling); and
pronounced, with persistent symptoms compatible with sciatic
neuropathy with characteristic pain and demonstrable muscle
spasm, absent ankle jerk or other neurological findings
appropriate to site of diseased disc, with little
intermittent relief (60 percent disabling).
Initially, the Board finds that Diagnostic Code 5293 is
inappropriate as the medical evidence of record reflects
negative neurological clinical findings. The veteran is
currently assigned the highest rating available under the
rating criteria of both Diagnostic Code 5295 for lumbosacral
strain and Diagnostic Code 5292 for limitation of motion of
the lumbar spine.
According to the schedular criteria, an evaluation in excess
of 40 percent disabling is warranted only in the presence of
ankylosis of the lumbar spine or residuals of vertebra
fracture. In this veteran's case, the medical evidence does
not document the presence of ankylosis or fractured vertebra
in the lumbar spine. Therefore, the present evaluation of 40
percent disabling is the highest rating allowable under the
diagnostic criteria which pertain to the veteran's low back
disability.
As the Schedule does not provide criteria for an evaluation
in excess of 40 percent disabling for a disability of the
lumbar spine, the Board has considered the assignment of a
higher evaluation on an extra-schedular basis, based on the
provisions of 38 C.F.R. 3.321(b) (1999). Upon historical
review of the veteran's clinical history, the Board finds no
basis for assignment of an extraschedular rating. The
evidence does not present such an exceptional or unusual
disability picture as to render impractical the application
of the regular schedular standards. Specifically, there has
not been a demonstration of marked interference with
employment attributable solely to the service-connected
lumbar spine disorder or frequent periods of hospitalization
due to that disorder so as to render impractical the
application of the regular schedular criteria.
For the reasons stated above, the Board finds that the
preponderance of the evidence is against assignment of an
evaluation in excess of 40 percent disabling. Accordingly,
the veteran's claim is denied.
Total rating based on individual unemployability
The appellant is seeking a total rating based upon individual
unemployability due to service-connected disabilities. Total
ratings for compensation may be assigned where the schedular
rating is less than total, when it is found that the disabled
person is unable to secure or follow a substantially gainful
occupation as a result of a single service-connected
disability ratable at 60 percent or more, or as a result of
two or more disabilities, provided at least one disability is
ratable at 40 percent or more, and there is sufficient
additional service-connected disability to bring the combined
rating to 70 percent or more. For the above purpose of one
60 percent disability, or one 40 percent disability in
combination, disabilities resulting from common etiology or a
single accident will be considered as one disability. 38
C.F.R. 3.340, 4.16 (1999).
As noted earlier in this decision, service connection has
been established for a lumbar spine disability, and a
disability evaluation of 40 percent is currently in effect.
In addition, secondary service connection has also been
awarded for adjustment disorder and a disability evaluation
of 10 percent is in effect. Thus, for purposes of
determining entitlement to TRIU, the veteran is considered to
have one disability evaluation of 50 percent. 38 C.F.R. §
4.16(a) (1998). However, the Board notes that the schedular
criteria pursuant to 38 C.F.R. § 4.16(a) (1998), still have
not been met. Therefore, the Board finds that the appellant
lacks entitlement to the benefit sought under the law; and
therefore, his claim must be denied. Sabonis v. Brown, 6
Vet.App. 426 (1994).
ORDER
An evaluation in excess of 40 percent disabling is not
warranted for the veteran's chronic low back pain.
Entitlement to a total rating based on individual
unemployability due to service-connected disabilities is
denied.
C. P. RUSSELL
Member, Board of Veterans' Appeals